At issue is the nickname “the Fighting Sioux,” a name that pays homage to the spirit of the American Indians who inhabit North Dakota. The name is in no way derogatory unless you sit in the ivory towers of the NCAA.

In 2005, the NCAA passed a rule saying it and it alone would decide what was “appropriate” nicknames for schools. Schools could get “waivers” if they managed to convince or gain the approval of the tribes in the mascot name. For example, the Florida State “Seminoles,” the University of Utah “Utes” and the University of Illinois “Fighting Illini” got permission from various tribes to use the name.

In the case of the University of North Dakota, the NCAA is requiring two Indian tribes – the Standing Rock Sioux and the Spirit Lake Sioux give their blessing on the use of the name and the mascot.

The Standing Rock Sioux initially agreed to the name but later pulled its approval. The Spirit Lake Sioux have given their approval for the use of the name.

Last year, the legislature of North Dakota passed a law requiring the name to remain the same. The NCAA followed that with a letter saying:

(Try using that in a lawsuit. “Uh your Honor, we don’t care what the law says, our agreement and rules allow us to discriminate in hiring.” Let us know how that works out for you.)
Because of the controversy, the “Board of Higher Education,” created by the legislation to implement laws and projects relating to the school as well as oversee the general operations of the school, sued in order to have the law requiring the name “Fighting Sioux” to remain as being “un-Constiitutional.” That case is headed to the North Dakota Supreme Court. If the Board of Higher Educations wins the case, there are other implications.

The constitution says the higher education board was established for “the control and administration” of the state’s public colleges, and that it has “full authority over the institutions under its control.”

John Bjornson, an attorney for the Legislative Council, the Legislature’s research arm, said the board’s Supreme Court filings argue that the Legislature’s power over the higher education system does not extend much further than deciding how much money to spend on its 11 public colleges.

If the Supreme Court sides with the board, lawmakers may not be able to dictate where college buildings are built, whether professors should be required to be fluent in English, or whether smoking should be allowed on campuses, Bjornson said, naming three examples of state laws that affect the board and university system.

The lawsuit “raises the bigger question, where does your authority begin and end?” Bjornson told the committee’s lawmakers. “Does it just begin with appropriating money, and end there, or is there some other point anywhere in between?”

[Attorney Reed] Soderstrom alleges that the NCAA has violated “the religious and first amendment rights of the Dakota Sioux tribes.” He also alleged a double standard in the application of the NCAA’s policy against the use of Native American names and imagery.

“Though the NCAA has decided ‘Fighting Sioux’ is derogatory, the NCAA supports the University of Illinois’ use of the name ‘Fighting Illini,’ and the use by Florida State University of the name ‘Seminoles’ along with the Seminole mascot – someone dressed in Native American attire who rides into the FSU stadium on a horse and throws a flaming spear before every home football game,” said Soderstrom. “The NCAA claims these are not derogatory depictions because the Illini people and the Seminole people approve of the use of the name and mascot. Inexplicably, the NCAA fails to accept the tribal vote and the sacred religious ceremony as endorsements of the name ‘Fighting Sioux’ by the North Dakota Sioux Nation.”

The lawsuit claims that the Sioux tribe were “indispensable parties” to a lawsuit filed by the State of North Dakota against the NCAA in 2007, the settlement of which required the state to get permission from the Spirit Lake and Standing Rock Sioux tribes, but were never included in negotiations of that settlement. It also alleges defamation, violations of the Indian Civil Rights Act, defamation and an unlawful restraint on trade.

The lawsuit asks that the NCAA’s policy be stricken and that the organization pay punitive damages in the amount of $10 million.

President Robert Kelly recently informed me that the University of North Dakota was resuming its use of the Fighting Sioux nickname and imagery in connection with its athletics program. I noted in my discussion with you and Mr. Brain (misspelled name) Faison that this action by the university means that your athletics programs are subject to the NCAA’s policies concerning participation in NCAA championships. Please allow me to reiterate the limitations that are in effect immediately:

1. No University of North Dakota team may host an NCAA championship round. If a North Dakota team is selected as the lower-seeded team in a championship competition, North Dakota would be designated as the “home” team but would be assigned to play at the higher-seeded institution’s venue.

(There is a slim chance this could happen to UND’s women’s hockey team if they win the Final Face-off at Duluth this weekend and get one of the top four seeds in the NCAA tournament. The men’s hockey team won’t host a regional if it makes the NCAA field; those four sites have been assigned long ago. One is the Xcel.)

2. If the university accepts an invitation to participate in any postseason competition, the NCAA policy requires that student-athletes, band, cheerleading, dance and mascot uniforms and paraphernalia not have hostile or abusive racial/ethnic/national original references during the NCAA championship competition.

3. If an invitation is accepted and the university must forfeit competition because it has not adhered to this requirement, the NCAA reserves its right to seek reimbursement for expenses incurred by the Association for travel, per diem or other expenses in connection with the championship.

It is the spirit of the NCAA’s championship policy that the competing student-athletes {both North Dakota and its opponents) not be distracted of disrupted during the championship by debates about when and where your institution’s Native American imagery or nickname may be displayed or worn. Therefore, we ask that the university take measures to minimize or eliminate the presence of the imagery or nickname brought to an NCAA championship venue.

Should you have any further questions, please feel free to contact me.

Sincerely,

Bernard W. Franklin

Executive Vice President of Membership and Student-Athlete Affairs/Chief Inclusion Officer

In other words, to host a tournament game, the University of North Dakota must violate the law, and “cleanse” every vestige of the name “Fighting Sioux” and the logo itself. Buildings, jerseys in trophy cases, logos on hockey rinks, floors, etc must be wiped clean of what the NCAA finds “offensive,” but the people of North Dakota, the school, the legislature and the Spirit Lake Sioux do not find objectionable.

In addition, new uniforms for players, managers, medical personnel, gear, gear bags, etc must be purchased because the NCAA is “offended.”

This is not the message the NCAA should be promoting. In essence they are saying that they and they alone are the final arbiter of what is “offensive” or not. There is nothing in the Constitution that demands one not “offend” another, so the organization that is headquartered in Indianapolis, Indiana, is now demanding institutions adhere to rules that were changed decades after joining the institution. Hypocritical? You bet.

The NCAA is saying to the men and women that play college sports that you don’t reap the rewards of your efforts on the field of play. As stated in the letter from the NCAA, the women’s hockey team might have a playoff game they earned taken away because the NCAA is “offended.” Certainly the school is left in an untenable position. They can follow the law, or they can follow the NCAA edicts from oh high. They can honor the heritage of the state and the school, or be told they should not show up to play.

What this really amounts to is the NCAA holding the University of North Dakota hostage. The NCAA is saying “you can do it our way or we won’t let you on the field.” Or perhaps another way of looking at this is the NCAA is using the threat of not playing to extort the University to do what the NCAA demands.

It is astonishing to us that the NCAA says it promotes “diversity and tolerance,” but yet acts like the bully of a school playground. Their “tolerance” does not extend to people or views with whom they disagree. It is literally, “do it our way or else.”

The NCAA is taking a beating on this, but it is hard to sympathize with a bully. It is hard to empathize with a hypocrite.

If the University of North Dakota, their student athletes, their alumni, their students and their fans are deprived of one ounce – one infinitesimal part of what they have earned, we hope the NCAA will be faced with a lawsuit the size of Mars.